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MICHIGAN SUPREME COURT

MAY 25, 2000 PUBLIC HEARING

MR. WEBER: Good morning, ladies and gentlemen, members of the

Supreme Court. For those of you who don’t know, I’m Marquette County Circuit Judge

John Weber and this is my courtroom. On behalf of my colleagues (inaudible) in

Marquette County, the bar and citizens, I’d like to welcome the Michigan Supreme Court

to Marquette County. We are delighted to have the Court come to our historic courthouse

in Marquette and conduct part of its business and with that I would like to introduce the

Chief Justice of the Michigan Supreme Court, the Honorable Elizabeth Weaver.

JUSTICE WEAVER: Thank you Judge Weber. And we would like to

thank everyone in the U.P. and here in Marquette particularly for the warm hospitality

that you’ve shown us. We came in yesterday and had an opportunity to meet with a

number of the people in the community and we appreciate the opportunity to be here and

to all the judges who have welcomed us into this most beautiful courthouses and

courtrooms in our entire state. And we’re very pleased to be here and so we say yeah, you

betcha. What we have going on this morning is an administrative hearing. Our Court has a

number of responsibilities and we have superintending control over all the courts. You

may know we have in Michigan we have over 250 courts and 600 judges and Michigan as

you know is a very big and diverse state. You notice that I know that we must include the

U.P. I myself am from Lenanauw County if a good swimmer can get over here fast. But

generally have to fly or drive and I’m what you people up here in the U.P. would call a

northern troll. I also want to recognize Judge Roy Gotham here who is a long time friend

of mine and we were both probate juvenile judges. I’ve been a judge now 26 years and

served on the probate juvenile trial branch and the Court of Appeals and Supreme Court.

What I want to do first is introduce all of my colleagues who I am very proud to serve

with each and every one of them and who are very fine qualified people. I will start with

our most recent addition to the Court and that would be Justice Steven Markman over

here on my left. Next to him is Justice Moira Corrigan. Next to Justice Corrigan is Justice

Marilyn Kelly. And next to me is our most senior Justice, Justice Michael Cavanagh.

Next to him is Justice Clifford Taylor and finally on our far right is Justice Robert Young.

We all, I am speaking for all of us, that we are indeed glad to be here and would like to let

you know how we run this administrative hearing. We want to give everyone an

opportunity who has come to speak if they wish to do so. We have an agenda which was

on our award-winning website. www.supremecourt.state.mi.com and it was also

published in the bar journal and in various places so we are coming out, we’re very

interested in hearing from all the citizens in the state because our goal is that Michigan

has very fine courts but we always want them to be better. We want them to be just,

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timely, fair and unbiased. So we want the best possible judicial services that we can

provide in Michigan. And because it’s such a big state, and Kewenauw which has about

1,000 people to Wayne County which has about 2 million people, one size does not fit all.

And we’re very conscious of that and so we’re always trying to make sure that keeping

the goal in mind of the best services possible to the public that we know what the needs

are in various communities. And by the way, between 1000 people in Kewenauw and 2

million in Wayne, we have them all sizes in between. There are 83 counties in this state

and we have almost 10 million people now. With that I would like to explain to you also

that in order to give everyone time to speak we allow 3 minutes and there is a little light

box up there and when you have one minute left a little yellow light will come on and

when your time is up a red light will come on and certainly you can finish your sentences

or your thought but in order to give everyone who would like to speak opportunity, we’re

going to try to stick closely to our times. And anyone who did want to speak who didn’t

communicate us by our website or by letter, if you have let Mr. Davis know, I don’t know

where he is now, somewhere, then you let him know. And he’s at the back so you can let

him know you would like to speak. Now with that we also have Judge Tom Solkis here,

where is he. I want to recognize him. Where’s the judge? There he is back there. He’s

your circuit judge, and then of course Mike Andaray, Mike where are you. There you are,

I didn’t see you. I came down to your office earlier, you know that. He was on the phone

working very hard. And then of course Judge Collins, where are you? I had the privilege

of seeing him earlier today and yesterday also. We also I believe we’re going to see our

district judge that is retiring, Judge Nicolette – there she is. And we certainly wish you the

very best in your undertaking of a new lifestyle and you have served Marquette and the

people of Michigan with great distinction and we appreciate that. I don’t think there are

any other judges here, right. It’s just oversight if I’m not recognizing you. You have a

wonderful bench here in Marquette and you can be proud of that. Now with that we’re

going to start with 98-34. And I would tell you we have things on the agenda and

sometimes people have no particular interest in a community to speak about them and we

may hear something written so I don’t know if we have anyone to speak on those. I’m

going to start with Item number 2 now, which is lawyer specialization, and that is 95-20.

And I believe we have Numinen to speak.

Item 2 - Lawyer Specialization

MR. NUMINEN: Thank you Chief Justice and Justices. May it please the

Court. Thank you for this opportunity to address the Court on this topic. Just by way of

introduction, I’m a member of the Family Law Council of the State Bar of Michigan,

although I’m not speaking on behalf of the Family Law Council but that’s particularly

relevant because I went through the process of becoming a certified adoption attorney

back in 1994 to start practicing adoption in 1995 and it’s in that regard that I am

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particularly interested in the State Bar Rule No. 18, this lawyer certification plan. I think

that it’s a double-edged sword or has the potential to be a double-edged sword. On one

had a certification plan has the potential to promote the skill and competence of our

profession. It has the potential to raise the degree of professionalism among the bar by

continuing legal education requirements in order to obtain the certification. On the other

hand, though, I think this certification plan has the potential to exclude lawyers from

practicing in certain areas and may signal the demise of the general practice attorney and

in the Upper Peninsula in particular, that would be a problem. I think that the proposal to

adopt a certification plan is a good one with one caveat and that is that if we do so, that

the certification plan not be a separate and additional licensure. In other words, if a person

was certified as an adoption attorney, the way the original certification for that program

was that no other lawyer could practice adoption without first obtaining a certification

and I think if we begin that specialization process we may end up on a slippery slope

where everything becomes a certified practice and then we exclude lawyers from

practicing in certain areas that a general admission to the bar should allow one to do. So

I’m suggesting that it’s a good idea to certify lawyers because it has the potential to raise

the bar. On the other hand, let’s not make it an exclusionary vehicle. Thank you.

JUSTICE WEAVER: Yes, and let me just say this. The Justices may be

asking you questions when you’re finished and so we do want you to stay for that.

JUSTICE KELLY: Do you believe that we should have mandatory

continuing legal education for lawyers if we do not have certification for specialities.

MR. NUMINEN: I do personally. I think the mandatory continuing legal

education is a significant means to raise the bar again. To provide for attorney

competence. To promote the professionals in the practice. As a somewhat young attorney

I remember going through the mandatory continuing legal education courses that were

offered at the time thinking that some of them were completely irrelevant to my practice,

to my career at the time. But I think that the two, the certification program and the

mandatory CLE can operate in conjunction hand in hand with one another.

JUSTICE KELLY: Do you believe that if mandatory continuing legal

education were adopted in Michigan, that Upper Peninsula attorneys could be

disadvantaged by having difficulty finding courses that they could take that were useful

and relevant to them.

MR. NUMINEN: I suppose that’s a potential obstacle but with the way–in

fact I’ve been involved in some CLE on behalf of the Family Law Council and I’ve been

a moderator of different CLE courses in Grand Rapids and most of them were done via

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video conferencing anyway. Either we had video presentations done with local specialists

acting as moderators to do the question and answer period or with today’s technology we

could actually do video conferencing where you have the specialty practice experts online

or on TV. Now on the other hand, the Upper Peninsula has a lot of, a high degree of

expertise in the practice here and we can certainly put on our own CLE programs.

JUSTICE WEAVER: Okay. Thank you. Any further questions, Justices?

Thank you so much. I would like at this time to recognize, we have some high school

students from Marquette Senior High. Are you in the back of the room there, high

schoolers? All right, thank you for standing and the teacher is Kathy Alexander. Good.

We appreciate you being here. Glad to have you.

Item 1 - MCLE

JUSTICE WEAVER: Now, we do have some people who would like to

speak on the issue no. 1, which is 98-34 which is whether to adopt a program of

mandatory continuing legal education for lawyers in Michigan which is certainly tied into

the issue that Mr. Numinen just talked about which is whether to have certifying of

lawyers. So at this point I’m going to recognize Mr. Alfred Butzbaugh, who is the

president of the State Bar of Michigan, and welcome to the U.P.

MR. BUTZBAUGH: Thank you very much, Chief Justice Weaver and

Justices and thank you for the opportunity to participate in this magnificent courtroom. I

do have just one point I would like to raise and that is that you sent us some questions.

They are very good questions. We have studied the questions and responded. As a result

of the questions you’ve raised we’ve concluded it is appropriate to go back to the

representative assembly. The assembly established this as bar policy in 1987, 13 years

ago, so we will go back to them to see if they want to continue this as bar policy.

However, it would be very helpful to us if we had an idea of those aspects of an MCLE

program that you feel would be appropriate and so I would simply ask that you set up a

mechanism or that we can set up a mechanism where we could have some dialog with

members of the Court so that when we go to the assembly we have a program that you

might look at favorably.

JUSTICE YOUNG: I’ll give you a heads up. Are you interested?

MR. BUTZBAUGH: Sure.

JUSTICE YOUNG: I guess I asked your predecessor what is mandatory

continuing legal education–to what problem is that the answer. Is it the bar’s position that

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substantial numbers of the members of the bar notwithstanding their ethical obligation to

remain competent and handle only cases that they are prepared to handle, notwithstanding

that obligation are still failing to keep themselves prepared.

MR. BUTZBAUGH: I think there are two issues and the committee may

have more and I hope the Court understands that I am (inaudible) on the peripheral. But

there are two issues–

JUSTICE YOUNG: I guess that’s one of the questions I want to pose

because at least to this point the bar has been unable to provide any empirical data that

suggests that mandatory continuing legal education makes any difference.

MR. BUTZBAUGH: I have asked about that issue and my understanding

is that there is no survey which would supply the information that you’ve asked so we

cannot prove that in that way.

JUSTICE YOUNG: Well in light of that I guess I’m interested in knowing

on what basis the bar says making continuing legal education should be mandatory, on

what database is it suggesting that lawyers are failing to abide by their ethical obligations

and why we would go into such a large and elaborate mandatory continuing legal

education program in light of that absence of data that has been proposed.

MR. BUTZBAUGH: I will make certain that we address that question.

JUSTICE KELLY: Do you believe that it’s necessary to show that lawyers

are failing in their ethical obligation to be educated on a continuing basis in the law in

order for mandatory continuing legal education to be appropriate.

MR. BUTZBAUGH: Well my personal view is no. I think that there is an

aspect of this that deals with the public confidence in our profession that could justify this

as well in addition to being able to prove it empirically.

JUSTICE KELLY: And in your personal view, is appropriate and high

quality continuing legal education useful to lawyers.

MR. BUTZBAUGH: It always has been to me.

JUSTICE CORRIGAN: Mr. Butzbaugh, just a brief comment. I’ve been

asking lawyers the question and I have had the opportunity to visit with different groups

of lawyers. I’ve asked them a lot of questions about MCLE and the interchange I get a

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constant theme back in the small groups, two points. First of all, the repeated theme is

that just going and having to attend these is an attendance requirement is a bit farcical and

that there is no testing requirement that people sit and read newspapers, sign in, don’t pay

attention, that there’s an attitude of disrespect in some of these programs. Particularly I’ve

heard from lawyers who are licensed in other states who have the mandatory requirement

about their objections there. The other theme that I’ve heard from lawyers is that a lot of

times the programs that they are required to attend are below their skill level and that they

are not able to find something that meets their own needs for continuing education by

virtue of the fact that sometimes the programs reach below this common denominator.

And that’s another point I’m interested in. How do we meet that need and shouldn’t there

be some component of this that would be permitted to totally identify with what their

continuing needs are.

MR. BUTZBAUGH: I will address those two issues as well.

JUSTICE WEAVER: Any other questions, Justices? Mr. Butzbaugh,

thank you. Now, on the same subject, that is again whether to adopt a program of

mandatory continuing legal education for lawyers in Michigan, Mr. Scott Hanson who is

an assistant prosecutor here in Marquette County and I’ve known for a long time in his

work in juvenile issues as president. And before he speaks I would like to recognize his

boss who I believe is here. I can’t see you Gary, there you are. This is Mr. Gary Walker

who is a former president of the Prosecutors Association of Michigan and known

throughout the state as a very fine prosecutor. And we’re glad to welcome you here too.

With that, you may proceed, and the Justices will try to give you 3 minutes before they

ask you questions. They’ll do their best.

MR. HANSON: Thank you. Madam Chief Justice and Justices, welcome to

Marquette. As has already been explained, I’m an assistant prosecutor here in Marquette

County. I’m also a State Bar of Michigan appointee/representative on the ICLE Executive

Committee. The ICLE Executive Committee has already sent a letter from Professor Reed

as chair of the committee to the Court outlining the position of the ICLE Executive

Committee as to mandatory continuing legal education. Basically we are in favor of that. I

personally am also in favor of that. Some of the questions that I’ve heard in reference to

particularly outstate or U.P. practitioners having problems getting to seminars. ICLE is

addressing that because through active internet aspects people will be able to buy and

have downloaded into their office teaching materials. In other words, they don’t have to

go attend a seminar. Stuff will be available. From examples in other states that have

mandatory CLE, private industry becomes involved. West Group and other areas. They

will be providing training materials and availability of sessions again through internet

capability that will meet that requirement. There are already several groups in Michigan,

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Prosecutors Association. They provide training for personnel, prosecutors, that is quite

valuable and needs to be recognized. Basically what my position is in reference to this is

based on the fact that there is a public perception that lawyers if we have mandatory CLE,

that lawyers recognize the need to improve. That law changes and modifies and that we

recognize the need to improve our skills. When private industry as well as ICLE becomes

more involved in that training process, bringing the materials to the user via the internet,

they can purchase just what they need. They don’t have to go to a 8-hour session on

cross-examination when all they want is a 90-minute training as to how to cross-examine

medical witnesses. They will be able to get what they need. They can get credit for this

that will make our profession function a lot better and the materials will be better. Thank

you.

JUSTICE YOUNG: Can I ask you a question. Let me ask you the same

question I asked President Butzbaugh. What is the problem to which mandatory

continuing legal education is the answer.

MR. HANSON: Both internal and external. From an external standpoint,

from the public, it’s going to give them a higher degree of confidence in this as a

profession and practitioners in the field. From the internal aspect, it will create a better

product available so that particularly outstate practitioners are going to have the

availability of getting those materials to keep their skills up-to-date and useful.

JUSTICE YOUNG: You’re saying by making legal education mandatory,

we create a demand that private providers will answer.

MR. HANSON: Yes, sir. ICLE will certainly address that and it has been

shown in other states, private industry will address that by providing that product in a

very usable and accessible fashion.

JUSTICE YOUNG: Are you here on behalf of ICLE to support the general

concept of mandatory continuing legal education or the specific proposal that the bar has

made.

MR. HANSON: Again, the Executive Committee has addressed that in the

letter that they have sent to the Court. I’m here as a member of the Executive Council

indicating that the concept is what is necessary. As to the dynamics or the internal, how

many credits per year or over the course of three years, I think that’s something that needs

to be determined.

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JUSTICE YOUNG: Well how about the fact that the var wants to be the

accreditor of CLE, what do you think about that. That’s part of this particular proposal.

MR. HANSON: I understand that. Again, I’m here in reference to the

concept, not necessarily the detail of who is going to do that. I think certainly the bar has

an interest in creating that. Is it the appropriate both to set up that form of what’s

accredited and what isn’t. That may or may not be the appropriate one. Certainly the

Supreme Court can get involved in this through the State Court Administrator’s Office

and I think there certainly is going to be necessary to have involvement from SBM as to

what is and what isn’t appropriate.

JUSTICE YOUNG: Why?

MR. HANSON: Because the group that we have in Michigan represents all

attorneys and that would be an appropriate forum just like State Bar of Michigan is

representative on the ICLE Executive Council along with all five law schools in the state.

They represent at large every attorney in this state and I think that’s a good representative

forum to be part of the group that’s going to decide what should and what shouldn’t be

certified.

JUSTICE YOUNG: So you think somebody should verify that the

programs that ICLE produces are worthy of certification for such a continuing legal

education program.

MR. HANSON: Yes, and I think because we have five law schools in this

state I think we can personnel or a certification committee together that would have the

necessary expertise to make sure that we are getting appropriate materials and will be

upgraded on a regular basis.

JUSTICE KELLY: Perhaps I misunderstood one of your answers. It’s not

your testimony is it that we should have mandatory CLE in order to create a demand for

these courses.

MR. HANSON: No, we need to have mandatory continuing legal

education and because of that we are going to get better product of education. In other

words, the materials available to the practitioner, whether in a large firm or a sole

practitioner, which most of the attorneys in this state are, they are going to be able to get

those materials to keep their skills up to par.

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JUSTICE KELLY: If an attorney got the materials over the internet, how

would we know that the attorney ever made use of them.

MR. HANSON: Well as in what ICLE is going to be doing, the practitioner

is going to be purchasing those training segments and there is going to be verification

through that that so and so has purchased this. As to how they involve the skills that they

may have learned and for their practice, it’s just going to be from a better, higher quality

of practitioner.

JUSTICE KELLY: How do we know the attorney will ever read it.

MR. HANSON: Well we have to have some self-regulation in this. We

have to have an ethical response within our profession and so from a self-regulation

standpoint it would be my position that we have to trust ourselves as attorneys to do what

we said we have. In other words, you’ve taken an oath, they’re officers of the court, they

should not be in a position where they’re going to lie about the fact that I signed up for a

course to learn this and didn’t do it.

JUSTICE YOUNG: Well then why don’t we rely on the ethical character

of our attorneys to follow what they are mandated to do by the Canons of Professional

Code of Conduct which is to remain current and to accept nothing which they are unable

to handle. Why is your argument that we should trust people when we mandate that they

go to continuing legal education not applicable to their obligation today to remain current

to practice.

MR. HANSON: To remain current under the existing system status quo it

is oftentimes particularly for outstate practitioners difficult to get the information that

they need to stay current and up-to-date. We are going to have available to us through

MCLE a higher quality of product, materials available, for that practitioner to keep his or

her skills up to par.

JUSTICE YOUNG: Solely because we’re creating the obligation, that’s

what you’re saying. So we’re making a market that doesn’t exist today.

MR. HANSON: No, the market is there. It’s just that there hasn’t been a

way of fulfilling it or meeting it.

JUSTICE YOUNG: I don’t understand that. Can practitioners today in

Marquette get CLE materials that they need or not.

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MR. HANSON: No.

JUSTICE YOUNG: So how does mandating that they continue CLE create

the access.

MR. HANSON: Because that will get the private sector involved in

creating the materials that are going to be necessary and available for educational

purposes.

JUSTICE MARKMAN: Can I ask you Mr. Hanson. Why doesn’t the

market work here. I mean the market works in terms of apportioning most of the goods in

society. Why in the course of all the lawyer advertising that we see don’t we see lawyers

tending to say well I want to distinguish myself from my colleagues so I would like to

highlight the fact that I’ve taken, even though it’s not required, I’ve taken various

continuing legal education courses and I’ve attended this class and I’ve gotten this private

certification. Why don’t we see that naturally arising in this market. I’m not trying to be

confrontational. I just don’t understand. Why aren’t we seeing that.

MR. HANSON: Well, for instance, ICLE as many of you know for years

has had lots of publications. Black on white. Printed books and materials for training and

creating skills. Just in the last few years since I’ve been serving on the committee since

1997 we have watched the demand for hard copy drop tremendously. And at some point

why you aren’t seeing some of those materials coming out anymore is because the

demand isn’t great enough and of course, it causes the cost of those, when you go from

1200 people who are buying the Probate Sourcebook down to 800 it makes the cost

greater. When you’re dealing with particularly the vast majority of sole practitioners, the

cost of getting those materials to keep their skills up-to-date and accurate, are becoming

prohibitive. If you have to go to seminars, going to and from the seminars can become

cost prohibitive.

JUSTICE MARKMAN: I understand it’s costly, but I mean it’s costly for

a contractor to get a certain kind of license. It’s costly for a plumber I guess to become a

master plumber but nevertheless they do that because they see market incentives to

achieve those kinds of characterizations. Again I’m just wondering why don’t lawyers see

it as being in their interest to advertise that they have achieved or they have attained a

level of competence greater in some respect than their colleagues in the profession.

MR. HANSON: Well, some of them do. What I’m referring to is a method

of access so they can get the materials they need to keep themselves up to that standard.

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And this is a way of accomplishing that. And it’s a way that we’re going to get, through

electronic media, those materials to them on a more cost effective basis.

JUSTICE MARKMAN: But you know there was so much controversy

over the last generation about lawyer advertising and it seems to me that advocates of

allowing lawyer advertising probably would have said that one of the justifications for

that is that we can now differentiate ourselves in a positive sort of way. We’re more

capable than our competitors or we’ve achieved some status that our competitors haven’t.

I mean this is done all the time in most other realms of advertising and I’m still trying to

understand what it is that operates in this field that seems to submerge any efforts to

differentiate oneself on this basis.

MR. HANSON: Certainly a lot of the advertisements, by looking at the

yellow pages locally, most practitioners will say that they have speciality areas of

practice.

JUSTICE MARKMAN: Well should we assume they do when they say

they do. I mean don’t they have an ethical obligation when they say they are an expert in

some area of the law, to truly be an expert in that area of the law.

MR. HANSON: Yes, but that’s not necessarily the perception of the public.

And that’s what I mean, they’re an internal and external aspect.

JUSTICE TAYLOR: What would your thoughts be on allowing the

creation of organizations that would style themselves as let’s just say for example, the

Michigan College of Matrimonial Lawyers and they would set up certification for people

to join that and if you wanted to be in that you could. If you didn’t want to, of course you

wouldn’t have to. And it would be run then at the expense of those individuals who are in

the private organization. They would be able to of course utilize that in any way they

would wish to and it sort of keys on Justice Markman’s question where they would be in

that for commercial advantage, one would think. This would then mean that lawyers who

don’t wish to do that, don’t see the commercial advantage in it, wouldn’t have to.

Wouldn’t have to bear the cost of it. But those who did wish to, what’s your thought on

that.

MR. HANSON: Voluntary organizations, and there would be multiple

depending on what speciality area of law you’re talking about, I don’t think that’s the best

way to get a firm bottom line acceptable accreditation educational product provided. To

have the Court, through the SCAO, along with the input of State Bar as well as the

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various law schools, you’re going to get a uniform product that’s going to be applicable to

any practitioner in whatever area. I’m not advocating by any means certification.

JUSTICE TAYLOR: I’m not neither. I mean, this seems to be a serious,

but not too serious, proposal because there is no testing. Nor is there any in the United

States, from what I understand of these proposals. That seems to me a most unusual way

to assure people that somebody got something out of this class.

MR. HANSON: Well, how do you perform an objective test on someone

who has taken a test in trial practices.

JUSTICE YOUNG: How does every other profession that requires

continuing education, doctors, CPAs, nurses, they all require testing at the end of the

course. If you think this is genuinely worth the effort for the PR impact that it has on the

public, why aren’t you prepared to offer testing like every other profession that requires

mandatory continuing legal education.

MR. HANSON: From the research that we’ve done, and that we’ve been

able to find available from other states that already have MCLE, there has never been an

objective standard test instrument available from anything that we’ve found.

JUSTICE YOUNG: Why does it have to be objective. Why doesn’t it just

have to be some affirmation that somebody went to a program and had actual cognitive

functions during it. I mean what Justice Corrigan has said has been the recurring

commentary that all of us have heard, that when you have got to go, like having

mandatory therapy, you can make somebody go and sit on that couch, but you can’t make

them deal with their problems. So you see people reading newspapers and doing other

things so if this is really important, why isn’t the Bar urging that somebody demonstrate

that at least they paid attention. Why does it have to be an objective scientific test. Why

can’t it be something to indicate that I was paying attention.

MR. HANSON: The fact that someone is buying a product, utilizing a

product in and of itself should be enough for that practitioner.

JUSTICE YOUNG: No, you’re forcing somebody to go.

MR. HANSON: Well, it’s not forced in the way that you can’t practice law

without doing it. This is to update skills. It’s not going to be a requirement of 100 hours in

credits per year or even 10 per year. And it’s going to be in relevant areas to what your

personal practice is. I specialize in children’s law, family law and criminal law and do

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some appellate work as well. So those are going to be my primary interest areas. I can’t

go to Grand Rapids all the time to get a product that they’re having statewide, whether it’s

ICLE or some other group. I can’t afford to go to Lansing or Detroit all the time. Just

travel time from up here or anywhere in the northern lower peninsula mandates two days

of driving time and the day at the session. So I’ve now lost three business days. So okay I

work with the county, I can work that one out. But if I can’t bill my hours as a private

practitioner, that’s going to be a significant problem. If I can get what I need, the

specified stuff that I need in my speciality areas of practice via internet access and

materials provided that way, I’m going to select the ones that are relevant to what I want.

I’m not going to go to a session and read the newspaper or whatever just so I can get my

name on a sign up sheet.

JUSTICE YOUNG: And you think that unless the Michigan Supreme

Court mandates continuing legal education, the marketplace will not provide those

products to the practitioners in the Upper Peninsula.

MR. HANSON: At this point in time that has been what has been going on.

Many of the private industry ones, and I’m excluding ICLE from here, have withdrawn

from that because of the problems that they have in making hard copy products to put out.

We’ve seen just in the last several years Clark Boardman and other, West, other places,

that used to provide this no longer doing it and there is no incentive to do it.

JUSTICE TAYLOR: Why has that demand fallen off.

MR. HANSON: Because of the prohibitive costs and the competition from

electronic media.

JUSTICE TAYLOR: So they’re getting it but just another way, you mean.

Is what you’re saying is they’re getting it but just not in the old-fashioned way.

MR. HANSON: I don’t think they are getting it, at least to the degree

where they need to have a quality product, a training product, educational product. With a

minimum requirement or whatever requirement of MCLE, the demand for the product

will go up, the quality of the product will go up and it will be more accessible to the

practitioner who needs it.

JUSTICE WEAVER: Could you clarify for me. Your idea is to be able to

take it off the internet or CDs or by some sort of thing. But you would not go to a meeting

or a conference or a session.

14

MR. HANSON: Well certainly some of them will be. In fact, as you know,

as ICLE often does things, they will set up a seminar training session and videotape it and

then have that shipped around the state to other ICLE centers. In fact I can’t remember

the last time we’ve ever had a live one in Marquette, if ever, but we can get the tapes. So

there will be sessions that can be provided that way. What the (_______?) and what ICLE

is gearing a lot of their future design and products to is being able to sell that individual

segment that the practitioner wants and pump it to them via the internet.

JUSTICE WEAVER: And he not go to a meeting. He can do it in his

office or his home.

MR. HANSON: Exactly. Any time of day or night. I can be up at 3:00 in

the morning and as a 24-hour accessibility I can download what I want. A lot of the

materials are going to become interactive. Not one-on-one live bodies but it will be an

interactive training session where the practitioner will pick choice A or B and then that

leads you into something else. And they will get better in active training that way.

JUSTICE CORRIGAN: Doesn’t that lead to the notion that you could

have a testing requirement in any mandatory CLE then. We got a letter most recently from

Daniel John Loomis of Corunna who indicates that he objects to the current proposal

because the attendance requirement is a joke. He said when he was an active member I’d

go to CLE courses and find people sleeping, reading the paper, doing legal work and

some listening. He would suggest that we change the attending requirement in the

proposed rule to successful completion, and he points to the example of his wife, an LPN,

who must attend continuing education courses but has to have a passing grade to get

course credit. Then Mr. Loomis suggests to us that even if the _________? course had a

fill-in-the-blank course outline which had to be turned in for credit, that would enhance

the possibility of learning taking place. Well if you have interactive videos you can have

fill in the blanks and you can have a testing requirement that makes some sense. I mean, I

just don’t want to do something that’s phony. And to say that you just have to show up at

a place, that’s all that the requirement is, that learning is going to take place, that seems to

me if we want to enhance public confidence I don’t understand how pure attendance does

it under the current proposal. And I don’t frankly think that you’ve answered that part of

the question that’s been posed.

MR. HANSON: All right, as to the attendance being a factor,

consideration, I’m sure that at many training seminars, whether ICLE or otherwise, that

people just go as that letter indicates to you. That people have just gone, signed up, slept

and all the rest of it. If there is a component or way, a demonstrated instrument that could

be used effectively, whether it’s creating an outline you turn in or if it’s interactive, if

15

there is something that could be done that way. From again, from the research that we

were able to garner from other jurisdictions that have MCLE, there had not been designed

an effective instrument to do that. Does that rule it out in the future, no, of course not, and

the more interactive that internet access capabilities are and the more practitioners that are

involved in it, certainly something could be designed along those lines. And something

that’s not objective. As we know, there are not always yes or no answers in this. Back in

the days when I was a teacher and a therapist, I used to look for one-armed lawyers

because every time I went to a lawyer they’d say on the one hand you’ve got this, on the

other hand you’ve got that. So as long as it’s not set up as a strictly objective yes/no,

right/wrong type situation, what could be a fill in the blank would show that at least

between the two ears had been spinning and working, if there is some way of doing that I

don’t see that there is going to be a major objection to that.

JUSTICE WEAVER: You also are not saying that ICLE or Institute of

Continuing Legal Education, for everyone to know, or the Bar Association or any other

group should particularly exclusively do this, is that right.

MR. HANSON: No, of course not.

JUSTICE WEAVER: You see a role for the law schools, if this is

something to be done.

MR. HANSON: Oh, yes, particularly in trying to define what is certifiable,

acceptable product for this education. And I think there is lots of resources through the

five law schools in this state that would provide that in any number of different areas as

well as taking practitioners through the fields, just as ICLE does now for the seminars,

and use those available. But if we can get a uniform consistent bottom line I think that’s

what we need to work on. And this is not exclusive ICLE. ICLE is not saying we’ll be

able to take care of all this for you. This is to create, in a competitive environment, a

better work product or better educational product from any number of different providers

which will include ICLE as long as that’s something that the Bar and law schools can

continue to support.

JUSTICE WEAVER: But you still aren’t requiring under mandatory that

people buy a product. They’re not going to buy a Ford, they’ve got to buy a Chevrolet or

they’ve got to buy something, right.

JUSTICE YOUNG: And so the programs that your own office proposes

would or would not qualify. The in-house program that your own prosecutorial office

would qualify or not.

16

MR. HANSON: Yes, via the Prosecutors Association? Yes. They could set

their training programs up so that they would meet the certification requirements.

JUSTICE YOUNG: Well how about your in-house. Just your shop that

sets up programs to train your assistant prosecutors in the changes in the criminal law that

come down, those would not be eligible for credit under a mandatory CLE.

MR. HANSON: I think anyone or any group that is providing training via

seminar or hard copy materials or any kind of interactive electronic media certainly can

apply to have their product evaluated for certification. It doesn’t matter where it comes

from, it just demands what the quality of that product is in meeting the need of the

practitioner in Michigan.

JUSTICE YOUNG: And you think someone better than the leaders of your

prosecutorial office can determine what’s needed for the assistant prosecutors there.

MR. HANSON: In a prosecution sense, we’ve got the National College of

District Attorneys, the NDA, various other groups that provide around the country various

training forums. Some states that have mandatory education have certified that program

and give credit hours.

JUSTICE YOUNG: I’m talking about your internal shop.

MR. HANSON: Just here in Marquette?

JUSTICE YOUNG: In Marquette. You think there is somebody better than

you and the prosecutor who can determine what your assistant prosecutors need in the

way of in-house training and that you need to have your program certified before the

attorneys that you require to take that training can get credit for it.

MR. HANSON: As such in our office which is relatively small, anything is

informal. We don’t have regular training sessions. There are various members of our

office that have speciality areas, or have areas of expertise that others don’t. We go to

them, you know if I want to find out about modifications or recent changes in PPOs.

We’ve got two people who have a lot of knowledge in that regard so I can go to them and

ask for stuff.

JUSTICE YOUNG: But that would not qualify as legal education.

17

MR. HANSON: No, that doesn’t qualify. Because the materials out there

come from so many different sources, some of the information is not even accurate or it’s

applied differently in various places around the state. We need uniformity so that we’ve

got a quality product that can be provided.

JUSTICE YOUNG: But PPOs given in Marquette might be different than

they are in Wayne County, right.

MR. HANSON: No, the PPO is based on statutory law as well as court rule

and that should be uniform around the state.

JUSTICE WEAVER: Any further questions? Mr. Hanson, thank you.

MR. HANSON: Thank you. Appreciate your time.

JUSTICE WEAVER: Certainly exceeded 3 minutes, didn’t we. We have

one more person who has asked to speak on this issue and that would be James Stewart.

Mr. Stewart.

MR. STEWART: My name is James Stewart. I’m a practicing attorney.

My office is in Ishpeming, Michigan up the road about 14 miles. I have practiced in

Marquette County for about 27 years. I probably have more continuing legal education

credits per year than anybody else in this county. I attend a ridiculous number of

continuing legal education courses probably because a little bit of feeling of inadequacy

so I feel I have to go to these to make sure I’m doing it right. But I’m opposed to

mandatory continuing legal education. I am very much opposed to it on the basic premise,

initially, that it will not make attorneys better that are not already doing this on their own.

That do not already feel that they need to go to these seminars, to acquire this information

to make them better practicing attorneys and keep themselves up to date. Now there are

many ways of doing it, of course. Many attorneys read on their own. They read the legal

materials that they subscribe to and keep abreast that way and others simply do it by

practicing. That is the best way to become a good lawyer and keep up to date is by

practicing what you do and doing it as best as you can. Now the other end of the

spectrum, those in our profession that may feel may not be quite competent, that are not

maybe doing as good a job as they should be, this proposal is not going to fix that. That’s

not going to change that because as was pointed out all you have is a measure of counting

credits. You’re counting how many times they’ve gone to a seminar and signed up and

gotten the credits. And that’s not going to change someone who already isn’t practicing

competently. That’s not going to change. Another aspect of the current proposal that is

probably necessary if we’re going to have this but I find some problem with and that is

18

that if the lawyer does not complete the required number of credit within the time

permitted, then they are placed on involuntary inactive status. Well that doesn’t mean they

aren’t competent to practice law. There’s the credits aspect but yet you’re saying that

because they did not complete those credits they are incompetent, we won’t let them

practice until they do that. That has no connection to the real life of practicing law. And

there are other issues about geography. Here in the U.P. one of the reasons I can do this,

that is go to a lot of the courses is because they’re held videotape in Marquette. They’re

not held in Ironwood. They’re not held in Sault Ste. Marie, they’re not held in Iron

Mountain. Those cities are two hours away from Marquette. So those attorneys do not

come to these very often because it is a burden to do that and so they have to acquire their

information other ways. So I feel that there is a problem for upper Michigan practitioners

to be able to get the necessary credits easily.

JUSTICE WEAVER: Mr. Stewart, before the Justices may ask you any

questions, two things I want to make clear. One is that because the proposal is out it is not

the Court’s proposal. The Court, as you can see, has not made up its mind whether it

would do this or not and many of these proposals don’t even originate with the Court but

we feel they’re important enough to bring them forward for public comment. So just

because we put them out there doesn’t mean we’re advocating it or not advocating for it.

The second thing I want to do is recognize that we have a fourth grade class here from

Aspen Ridge School and I think the teacher is Mr. Joe Goeng, is that correct, and we just

want to welcome these young people as they are passing through, seeing this beautiful

courtroom and getting to see their Supreme Court in action, so we say hi to all of you and

our fine county clerk here is taking them around. So with that, now there may be some

questions for you and I wanted to take that break because we don’t want to have to have

those young people standing here all that time.

JUSTICE YOUNG: Counsel, again I’m sort of lost because the proposal

has come from the Bar, they have not, other than asserting a public relations value that

everybody thinks it’s a good idea for lawyers to take and continue to educate themselves,

there really isn’t a lot of data that suggests that mandating continuing legal education

makes any difference. And there isn’t any data frankly about how many lawyers are or not

in Michigan availing themselves of continuing legal education. Is your sense as an Upper

Peninsula lawyer that the lawyers in this community are not availing themselves of

continuing legal education.

MR. STEWART: Well that depends on how you define continuing legal

education.

19

JUSTICE YOUNG: Well let’s start with that. I posed to Mr. Hanson that

the informal communication with experts in his office at least in my view were entirely

appropriate, exactly what you want a competent lawyer to do, consult a senior lawyer who

is expert in a particular area. He didn’t think that that was the kind of educational

opportunity that should be credited. How do you feel about that.

MR. STEWART: I don’t think you can credit it. I think it’s very difficult

to quantify that sort of experience and increase in the person’s knowledge base. As far as

a quantity is concerned and calibrating that and reporting it, I think that’s something you

can’t really do and that goes on all the time.

JUSTICE YOUNG: The question is, is it continuing legal education. You

were talking definitionally. I would consider that continuing legal education.

MR. STEWART: Okay, I would agree with you, yes. But I don’t know

how you would actually credit that in a formal system and that’s part of my gripe I would

say. In our office the attorneys get their knowledge in different ways and I’m the one that

goes to seminars a lot because in my area of practice there’s a lot of material that comes

out. I do a lot of estate planning, probate and elder law and so there’s a lot of material that

comes in seminar fashion that I can get because it’s in Marquette fairly efficiently. But for

other areas of practice it’s more efficient for the attorney to read the journals or subscribe

to a particular publication and get the information that way. For a trial lawyer the trial

practice skills are something that’s very difficult to get out of a seminar and I think there

is only one a year that really goes into that significantly in Michigan, maybe two. And I

guess that’s another aspect of my gripe here is that different areas of practice really

require different types of upgrading and upkeep so to speak to keep up the skills and for

my area as I say there is a lot to do with forms and changes in the law and so forth that

you need to keep up on. For a trial lawyer it’s a little different. You’ve got to be able to

think on your feet. You’ve got to be able to make the objections at the right time. But

some of those don’t change very fast and those kind of things don’t change quickly so

once you’ve got that base you can be the best trial lawyer in Michigan, be trying cases

throughout the year and not have time to go to seminars and not be able to satisfy the

requirements even though you’re one of the best trial lawyers in the state of Michigan. I

think that’s a definite fallacy of the idea of continuing legal education is it does not

address and cannot address all areas of practice and the kinds of things that lawyers do on

a day-to-day basis. It is just not possible to do that.

JUSTICE YOUNG: What I’m asking you to address though, is there a

need for mandatory continuing legal education. I know you don’t like it but is there a

need and it’s been asserted that there is a public relations need because everybody in the

20

public thinks that this is the kind of thing lawyers should be imposing on themselves, I’m

asking you if you think that is a legitimate reason for this Court mandating it or do you

see in your daily practice that you come into contact with lawyers who really are not

competent, who are not by all the various means that lawyers can have at their avail to

increase their store of knowledge to remain and continue to be competent, are you seeing

a lot of incompetence in your practice.

MR. STEWART: I feel that there are lawyers that I come in contact with

that are less competent. I’m not sure I would go so far as to say incompetent except if I

happen to be angry with one but assuming there are some that are less competent than

others and I don’t know how you can change that. My belief is that mandatory continuing

legal education is not going to change that. I happen to be a licensed pharmacist in the

State of Michigan. We do have mandatory professional education continuing for

pharmacy. My daughter happens to be a veterinarian. They do not have that requirement

for veterinarians in the state of Michigan. And yet those two professions manage to go on

and pharmacists have had a very high rate of respect from the public for years and years

before the mandatory professional education requirement went into effect. That was true

before that. So I submit that as far as the public perception is concerned, the mandatory

professional education is not the crux of it, is not the reasons–the problem with lawyers,

one of the problems anyway with lawyer perception is not that they’re incompetent as a

group. You’ll get occasional problems of course that will come out in the public will be

publicized but as a group I don’t believe that that’s the premise or perception that the

public has. I don’t think that is really where the problem lies and that’s not a reason in

other words. I do not believe that would be a reason for mandatory continuing legal

education in Michigan.

JUSTICE MARKMAN: Well Mr. Stewart, I mean if there are indeed

attorneys who you tactfully call less competent than others, how would you respond to the

argument that mandatory CLE is better than nothing in protecting the public. Maybe some

will take it seriously. Maybe some will go to sleep but maybe some will take it seriously.

Don’t these benefits outweigh the harm and what are the alternatives for dealing with the

less competent attorneys.

MR. STEWART: I do not have the answer for alternatives. As far as

addressing this proposal, I do not believe this is going to have any effect on that because

those who are incompetent are not going to become competent because they are required

to attend some seminars. The seminars that they would attend wouldn’t even have to be

those that pertain to their area of practice. It might just happen to be those that are

convenient.

21

JUSTICE MARKMAN: Why are you assuming that the quality of the

CLE has to be such that it can’t bring somebody up from incompetence to competence.

What if you had a truly good CLE program. Isn’t there at least the potential or the

possibility that it could bring somebody up to a level of competence.

MR. STEWART: Okay, right, if you assume that the person is going to go

to the CLE program because they already feel that they need to bring up their level of

competence and therefore will participate actively in doing so.

JUSTICE MARKMAN: No, I’m assuming that they’re compelled and it’s

only because they’re compelled they’re going. But nevertheless at least some people who

are compelled to be in a classroom may be prompted by virtue of that experience to gain

some knowledge that they wouldn’t have otherwise had.

MR. STEWART: I doubt very much that it will have any noticeable effect

but if it did it would be on a very small number basis and the proposal is to make

mandatory continuing legal education across the state for absolutely everybody at

considerable cost to the practitioners, by the way. This isn’t going to be free. And to say

that we might be able to affect one or two percent, and of course this is just taking some

numbers at random, but whose competency level would be increased because of that I

think it’s using the wrong method to address those practitioners that we think might be

incompetent.

JUSTICE MARKMAN: So you’re saying that even if there are some

potential benefits you think they are significantly outweighed by the various costs that

you’ve described.

MR. STEWART: Absolutely. Because the 99% of lawyers that are

practicing, using a rough number, are competent to practice law and–

JUSTICE MARKMAN: Or else they’re not competent and won’t be made

competent by these programs.

MR. STEWART: That’s right, exactly.

JUSTICE CORRIGAN: Mr. Stewart, can I ask one quick question. I

listened to your remarks. Some of the various programs in the other states the Court has

been looking at, I wonder what your reaction would be to this one, sort of a carrot and

stick approach. Not the stick but the arrow. In Alaska they’ve adopted a program of

voluntary continuing legal education where they give a dues rebate if you participate. Do

22

you think that sort of a program would have a good impact on human behavior in our

state, that is lawyer behavior, push the ball down the field a little bit in terms of

enhancing overall education and getting voluntary behavior to do that. I’m wondering

what your reaction is to that.

MR. STEWART: It’s appealing initially except that you have the same

problem as far as the participants are concerned. The participants who are going to go to

these because they want to enhance their skills or because they feel they need to update

themselves on a particular practice are are going to go and they’ll be encouraged to go, of

course, under that proposal. Those who really don’t care about the system, don’t care

about enhancing their skills that way will go because they can get a rebate and you’re not

going to have any different result overall except you will have the whole layer of

additional bureaucracy that you have to put into place to be able to set up the standards, to

police it, to make sure that it’s done properly. And at additional expense to the State Bar

and the practitioners.

JUSTICE WEAVER: Mr. Stewart, is it perhaps fair to characterize what

you’re saying is that you and every lawyer that is allowed to practice law in Michigan has

taken the oath to be competent and not to take cases that they’re not qualified to handle, is

that correct.

MR. STEWART: That’s correct.

JUSTICE WEAVER: And in a sense that is a mandate isn’t it.

MR. STEWART: Oh, yes, absolutely.

JUSTICE WEAVER: So we probably already have mandated continuing

education for lawyers but what we have in front of us is a new definition of it, is that

correct, and you are objecting to the new definition.

MR. STEWART: That is correct. And one of the reasons as I said at the

outset for that objection is that this will not address the ultimate competency issue and

responsibility of the lawyers to maintain their competence, just as a paper method of

keeping track of the fact that we’re saying okay all the lawyers have to take 30 hours in 2

or 3 years and so we have a system in place to make sure you do that. That doesn’t insure

the fact that they’ve already taken the oath that they’re supposed to be maintaining their

competency anyway.

23

JUSTICE WEAVER: And are you trying to say that in your opinion

certainly the lawyers you deal with, I think I heard you say 99% or some percentage you

think are basically competent. Some may be more competent than others. And I take it

that you feel that one percent that would be truly incompetent should be disciplined or

removed in some way improved.

MR. STEWART: That’s actually true.

JUSTICE WEAVER: Is that what you’re thinking.

MR. STEWART: Yes, I do.

JUSTICE WEAVER: So you’re not against mandatory continuing

education. You see that you already have it by your oath to the bar, is that correct, and you

are doing it. But you are against trying to quantify it by having to take so many hours and

report. Is that where you are. Because you obviously keep yourself up to date.

MR. STEWART: That’s true, I’m opposed to the new system of, layer,

basically, that will be imposed on the bar, on the practicing attorneys relative to this

what’s called continuing legal education. I’m opposed to that formalizing of the process.

We’ve had continuing legal education in Michigan for as long as I’ve been around

practicing law. It’s there and it’s actually the delivery of that system has improved greatly

in my opinion over the past 10 years or 15 by the advancements done in large part by the

Institute, by videotaping, by making those videotapes available to people and also now

some internet services. So we continue to see advancements in delivery which makes it

easier for practitioners to participate and get that information, but to formalize that and

put a layer of bureaucracy over this whole thing I feel is a mistake. I feel it imposes an

extra expense for which there is no corresponding benefit. And it actually could end up

interfering with the advancement of the delivery in the future because the system isn’t

going to be able to respond as quickly as advances in technology do. So I just really, in

my opinion, especially with regard to the legal profession, although I question whether it

really does a very good job relative to some of the others either. Especially with regard to

the legal profession I don’t feel that that’s going to be a worthwhile project to achieve

what the stated goals seem to be just doesn’t do it in my opinion. There was some

mention about testing, doing a little more elaborate testing for the participants to show

that they’ve really gotten something out of a particular course or seminar. And I would

actually be opposed to that because seminars that I go to, one of the reasons I go to them

is because they cover an enormous amount of material as a rule. They try to cover either

one area very much in depth or a broad number of areas as quickly as possible. We have

materials to refer to so some of the information and materials wouldn’t even be covered at

24

the seminar. You have to refer to them when you get back to the office and then use that

information in your practice as you’re going to law. You don’t absorb into your practice

instantly when you get back to the office. It doesn’t work that way in practice. You have

to bring it in a little bit as you go along and that’s how I see with regard to any such

program of continuing legal education that it takes time to actually assimilate that into

practice and to try to test for that in my opinion would first be impossible to do correctly,

and second a mistake because then you’d have to narrow your program to a smaller area. I

think a seminar would actually be worth less to me then because you wouldn’t be able to

cover as broad a depth of material because part of the time would be taken up in trying to

figure out what do with the testing.

JUSTICE WEAVER: And seminars are only one way that you’re keeping

up, there are lots of ways that a lawyer continues to grow.

MR. STEWART: Oh, absolutely.

JUSTICE WEAVER: Well thank you very much. Are there any other

questions? Thank you Mr. Stewart.

Item 3 - Court Officers

JUSTICE WEAVER: Okay, we are going to move on to Item 3 which is

whether to adopt rules regulating the practice of court officers with regard to how writs

are executed. Now some of the issues that we bring forward don’t attract a lot of public

comment and others do. You should know that this is not the only public hearing that we

have had or will have in the state and we have had them in Grand Rapids, we’ve had them

over in Benton Harbor. We’ve had them in Flint, we’re now up here in Marquette and

we’ll be continuing to move around the state. I have no one listed for this particular item

and so I will move forward unless I have somebody there that wishes to comment. Why

don’t you come forward then, I see a hand raised. And would you please identify yourself.

MR. HOLLY: Good morning Chief Justice Weaver, Justices. My name is

Rod Holly. I’m with (inaudible) District Court. I’m a court officer. This is Terrence

Couch. He’s also a court officer. And our concerns in regards to the proposed new rule,

paragraphs B and C for starters. Just a brief synopsis of how we got these jobs started.

Almost two years ago then Chief Justice Mallett along with Ann Hogan (?) were able to

implement an executive order that would bring in new court officers into 36th

District

Court because of the fact that 95% of the bailiffs retired at one time and they needed the

manpower so they did implement that and what has happened since then is as a matter of

fact January of this year the MERC, which is the Michigan Employment Relations

25

Commission made a decision to bring us in as opposed to independent contractors as

employees of the 36th District Court and that has happened since. Okay. Now our concern

is with regards to the fact that paragraph C, the qualifications of the court officers the

appointment shall not exceed two years. Well the thing is now we are employees I don’t

think that would be concerning to us because of the fact that 36th District Court, being the

largest district court in the state of Michigan, they have the most volume in regards to the

workload. Every other district court seems to have court officers that work part time.

They do other jobs. In our court we are full time court officers. So with regards to that I

don’t see that that would pertain to our positions on that issue there, paragraph C. And

with regards to paragraph B that’s basically the same thing. We started off as independent

contractors. They have now made us employees of the court under the MERC decision

that was filed this year.

JUSTICE WEAVER: Thank you Mr. Holly. Any questions of Mr. Holly.

MR. COUCH: My name is Terrence Couch, 36th District Court officer. I

would like to speak on Rule 3106(B), obtain court approval of employees and contractors

who assist the court officers in seizures of the property and evictions. The court officers

and bailiffs that do this job, 72% of our jobs, houses that we go to evict. We go to the

most run down and nastiest properties in the city of Detroit as I’m sure most of you are

aware. And for us to have to continuously obtain approval from the courts of who we

hire, we can’t get regular individuals to come in and work for us. We have to pick up

gentlemen from the like NSO and the YMCA because there is nobody else that wants to

do that job and the dirtiness that they incur in doing the job, we pick up a different crew

every week. And that would slow us down and interfere with our income on a regular

basis if we have to continuously request the courts as to who we want to hire and who

we’re going to bring in to remove this property from these peoples’ residence when we go

to do the evictions. As to number 5, the court may limit the writs of executions and orders

of evictions to the court officers. For the 36th District Court, all of our writs and

executions are done on a rotational basis so I would ask if there is some way that there

could be unless otherwise specified by that jurisdiction because we can’t have them

limited because we’re on a rotation basis. If they limit it that means they can give one

officer more work than they can give another officer and that takes away from

equatability. As to (E), procedures regarding issuance of the services, basically the same

thing. It’s just an open paragraph and they can change that rotation device and take away

from the equatability. As to number (3), a court in its discretion may limit the hours in

which the property may be seized, that has to do with execution of property on the writ.

That takes away from the art of surprise. We have to seize cars, we have to seize property,

businesses and things of that nature and if they tell us that we can only get a car from 8:00

in the morning until 10:00 at night, most people that are working nowadays are working 2

26

or 3 jobs and if we can’t get that car until 12:00 or 1:00 in the morning, that’s taking away

from equatability. The whole sheet seems to be taking away the equatability of the court

officer. That they’re going to say what time we can do it and what time we can’t do it, we

don’t have a job to go out and work for. Number 2, a copy of the writ shall be served on

the defendant, the defendant’s agents or posted at the premises in a conspicuous place.

There is an order that is called a 72-hour notice in which we mail to each defendant

presently before going out to let them know that we are giving them 72 hours to contact

us to let us know how to handle this writ of execution before we do it and to go out and

just post it on the door, the people may no longer live there or anything. And after we give

the 72-hour notice we do go out but they believe that we should give them the 72-hour

notice so if they can try to handle it on their own that cuts some of the fees down on them.

Page 4, 5B, executed later than 56 days, an order of execution, it should be 91 days. We

have 91 days to do orders of execution. We have 56 days, which is (A), to do the order of

eviction. And that’s about all that I have at this time.

JUSTICE WEAVER: Any questions, Justices? Thank you for coming. We

appreciate that.

Item 4 - Permanent Disbarment

JUSTICE WEAVER: We’ll now turn to Item 4, which is whether to

provide for permanent disbarment of attorneys. I don’t know that we’ve attracted any

comment on that today.

Item 5 - Code Judicial Conduct Canon 7

JUSTICE WEAVER: No. 5, which is whether to prohibit appointment of

attorneys by judges for a two-year period after the date the lawyer made political

contribution. Judge Collins is present and he has asked to speak.

JUDGE COLLINS: Thank you Chief Justice and Members of the Supreme

Court. I’m here on behalf, as well as local judges but on behalf of the Michigan District

Judges Association of which I am privileged to be the president this year. First I would

like to point out how we handle court appointments here in Marquette. We have two lists.

Lawyers that are interested in being on that appointment list submit their names. We have

one list for misdemeanors and one for felonies. The reason for two lists is so that they get

an equal proportion of the appointments of felonies in relation to the other lawyers and

the same with misdemeanors. We take the next person on the list. If somebody comes

before me and I have to appoint an attorney, if it’s a felony I make a recommendation of

the next person off the felony list. That goes to the circuit judge who generally will affirm

27

that appointment. If it’s a misdemeanor I make the appointment or Judge Mepa makes the

appointment. So there is no reward or punishment for contributing to our campaign funds

or not contributing to them. I recognize that there is a problem in some areas of the state

where judges have been a little unfair in trying to lean on lawyers to make contributions.

Some of the problems that you’ve got in the state of course wouldn’t be touched with this

anyway because we have the problem in Warren which is entirely different than the

reward and punishment thing. So those could be gotten around. If I were a lawyer wanting

to be on an appointment list and I wanted to impress that particular judge that I was

supporting him and I can’t contribute anything to him, there is nothing that says I can’t go

out and get some of my friends to make contributions and let that judge know I raised

some money for him, so you really can get around that I think quite easily. I think that you

ought to consider, rather than this kind of a rule which prohibits a lawyer from

contributing for that period of time, perhaps as we’ve tried to deal with the subject of

court reform, kind of deal with judicial councils. Why don’t you consider the possibility

of having the local judicial council come up with a plan that kind of assures some fairness

in passing out appointments and then maybe you could have that subject to review by the

Court Administrator’s office. Some sort of guideline that would see that there was

fairness without just saying lawyers can’t contribute or they can’t be appointed if they did

contribute. And that’s essentially what I have to say.

JUSTICE WEAVER: Thank you, Judge. Any questions, Justices?

JUSTICE KELLY: How you would propose, Judge, that we might insure

there was fairness.

JUDGE COLLINS: Well, like I said what we do here in Marquette, we

have a list and we take the next person on the list. It’s quite fair because there is nobody

getting any partial treatment. Sometimes a defendant will come in front of me and say

attorney so and so said that he would take the case if you appointed him, but if attorney so

and so isn’t the next one on the list, attorney so and so doesn’t get the appointment. If that

particular person, and this often happens, has other cases pending, we will appoint the

same attorney for the new case that he has on the other cases so that one attorney can

better cut deals or negotiate settlement for all the cases, better than having several. But

it’s just taken on a rotation basis.

JUSTICE KELLY: Are you speaking on behalf of the District Judges

Association as well as on your own behalf and from your own experience.

JUDGE COLLINS: Yes.

28

JUSTICE KELLY: Can you tell me whether there was significant

difference of opinion among the judges in the Association on this question.

JUDGE COLLINS: No, those that addressed the issue were pretty much

opposed to the rule. A lot of them are concerned about raising money for campaigns and I

have been fortunate, I have not been opposed in the last two campaigns that I’ve been

involved in so I haven’t had to deal with the issue–

JUSTICE CAVANAGH: And you won’t have to worry about another one.

JUDGE COLLINS: No, I’m out. The Constitution throws me out at the

end of this one.

JUSTICE TAYLOR: Are the district judges in favor of a random selection

such as you have here, is that what you’re saying.

JUDGE COLLINS: I’m saying that’s my proposal.

JUSTICE TAYLOR: No, is that the District Judges’ proposal.

JUDGE COLLINS: No, the district judges just merely stated opposition.

JUSTICE YOUNG: Well do they acknowledge in those courts that do not

have a list from which the next attorney is selected, that there is a problem perhaps.

JUDGE COLLINS: I think there is in some courts and I think we all have

acknowledged that. We are aware of some of the problems that have been brought to the

Supreme Court where lawyers have complained about having to make contributions or

they don’t get appointed.

JUSTICE TAYLOR: So what’s the answer.

JUDGE COLLINS: What is the answer. We agree that is a problem.

JUSTICE YOUNG: What’s the answer then. If there is a perception that a

judge who gets a contribution and who turns around and then appoints that lawyer at

taxpayer expense to represent an indigent or to, in the probate side of things, to do an

estate, if there is an awareness in the District Judges Association that that might be a

problem, an ethical issue, what are they proposing then.

29

JUDGE COLLINS: Let me say this. I think it’s an ethical issue where that

judge may exclude those who didn’t contribute and require those that want to be on the

list to make contributions. I don’t think there is an ethical problem if there is a

contribution from a lawyer to a judge and the judge appoints him.

JUSTICE YOUNG: No, this is at least an appearance concern, is it not.

Where there is the direct appointment by a judge and where there has been a prior

contribution by an attorney.

JUDGE COLLINS: I don’t think that should be a problem unless that

becomes a condition of the appointment. If the judge is saying I’m not going to appoint

you unless you contribute to my campaign, that’s bad. If he says well you contributed to

my campaign, therefore I’ll appoint you, that’s not good. But if he’s appointed because

he’s a good lawyer and it’s coincidental that he received a contribution, I don’t think

that’s bad.

JUSTICE TAYLOR: Judge, what if he doesn’t say that but that’s what

happens. That you have to contribute to get appointments. And you earlier indicated that

your Association recognizes that there may be a problem here. So it seems to me that it’s

incumbent on that group to say well here is what we’d do. You can’t just say well let’s

just let it continue.

JUDGE COLLINS: Well, as I stated here, and my suggestion –

JUSTICE TAYLOR: I understand your suggestion. You want to have it be

random. But I wonder, does your Association back that.

JUDGE COLLINS: I’m sure it would. I mean we haven’t specifically

addressed it, and I will address it.

JUSTICE YOUNG: I would be very happy to hear from the District

Judges Association on a solution to a problem that they believe exists, particularly in light

of the fact that they don’t like the particular proposal that is before us. And I find this as a

recurring theme with the bar and judge associations that they say we don’t like this,

there’s a problem. But they don’t offer any alternatives. I think your proposal might be a

particularly wonderful alternative to the proposal we have before us, but it’s only your

opinion. You’re not speaking now as president of the District Judges Association that this

is the alternative solution that obviates the ethical dilemma that the proposed rule is

attempting to address. Do you understand what I’m suggesting. It would be very helpful

30

to the Court, in addition to saying no this isn’t the right solution, to actually have

somebody coming forth with an alternative.

JUSTICE TAYLOR: Do you think there would be any interest in the

District Judges Association coming forward with a proposal that would be a solution to

the problem.

JUDGE COLLINS: I think there would be no problem at all with that.

What is the deadline on that?

JUSTICE TAYLOR: I don’t think there’s a deadline.

JUDGE COLLINS: 60 days or something.

JUSTICE WEAVER: Certainly we can hold it for 60 days.

JUDGE COLLINS: Well, our next meeting is on the 19th

, or the third

Friday in June. I will see that something is forthcoming.

JUSTICE YOUNG: We would be happy to hear what the district judges

would think the appropriate solution would be.

JUSTICE CORRIGAN: Judge Collins, could I just suggest as well, there

is a pending proposal that is about to come in front of us from the Michigan Judge

Association regarding the question of appellate appointments and they have suggested

something similar to what you have just stated as an effectively a judicial (inaudible) sort

of an idea, so you might want to take a look at the MJA recommendation.

JUDGE COLLINS: I might also point out, the amount of money we pay

these guys for court appointments is practically pro bono work anyway.

JUSTICE KELLY: Judge, I would appreciate it when you take this back to

your Association that you phrase it in such a way that they realize that we’re asking

whether any amendment is needed at all and if so, what that would be.

JUSTICE WEAVER: Anything further, Justices? Judge Collins, thank

you. Now I have Scott Hanson who would like to address this matter.

MR. HANSON: I will be brief. I echo what Judge Collins said, that the

way to take care of any appearance of impropriety is to limit the amount. The language

31

now possibly leaves a loophole at the $100 so that there may be a possibility of an

attorney providing more than that. I certainly think from my practicing here, in Ingham

County and elsewhere in Michigan, that setting up a system such as Judge Collins

suggested is going to take care of it. By limiting any attorney from an appointment list

that has provided contributions, you’re treating retained counsel from appointed counsel

in a different fashion. I think there are better ways for the justice system to police itself in

this regard and simpler ones as well.

JUSTICE TAYLOR: What is the better system.

MR. HANSON: The better system would be to have again a uniform

system of appointment that is set up by an attorney wanting to get on that, going through

the court, the court interviewing, the court office or judge interviewing to make sure

qualifications are present, which is why here we have misdemeanor versus felony to

assure quality of legal representation. Now you’re going to be functioning, working in

front of that judge, so it should be up to that court to determine who is an acceptable

practitioner and then beyond the appointment list on the rotation basis as suggested.

Certainly there could be modifications and that for extremely involved capital cases or

appointments of even multiple attorneys.

JUSTICE TAYLOR: So you think the answer would be something akin to

the Judge’s proposal that you would have a totally random draw of people that are on that

list.

MR. HANSON: Yes, and if there was an objection by a respondent or

defendant to something, the court has the availability of changing who that appointed

counsel is.

JUSTICE KELLY: Do you think we should mandate what change should

be made in the current system or should we request or mandate that each district, each

court, initiate within itself a procedure acceptable to it to insure dispassionate

appointment.

MR. HANSON: (inaudible) of course, that’s in your bailiwick. That’s

something that you certainly can do.

JUSTICE KELLY: Right. I’m asking what you’d do if you were sitting

here.

32

MR. HANSON: I suppose initially I would like to find out. I don’t practice

in Detroit. I don’t know all the problems that are (inaudible) in that area. Or Grand Rapids

or Flint or whatever. I think getting some feedback from the actual practitioners, judges

and attorneys in those locales as to what they perceive the problems as and how they think

it could be addressed. Certainly, and the bottom line would be that this Court establish via

court rule how that would be set up. And I think the dispassionate rotational system of

appointment is going to be the answer there and you can take care of political

contributions and any issues in that by dealing with the amount of a contribution and

cleaning up or tightening up that so the language is clear.

JUSTICE WEAVER: Any other questions?

MR. HANSON: Thank you for your time.

Item 6 - Family Court Rules

JUSTICE WEAVER: Okay, we now will proceed with whether to adopt

certain rule changes which would be applicable to the operation of the family court

division of the circuit court. And Mr. John Ferrier who is a friend of the court referee is

present.

MR. FERRIER: Good afternoon. It’s a pleasure to be here and have an

opportunity to address all of you. I’ve submitted written comments on April 3 concerning

the proposed rules and I’d like to tell you I bring you greetings of the Referee Association

of Michigan which is meeting today for its annual conference down in Traverse City. I’m

not going to repeat everything that I said in my comments but just highlight some of the

points because I assume you’ve had an opportunity to review them. We believe, in the

Referees’ Association, and I personally believe, that having a review of the record

produced before the referee is a step in the correct direction and that rule that would

provide for this, as does the proposals to change MCR 3.215 would be helpful in the

sense that it would bring uniform practice to the state of Michigan throughout the circuits.

There is currently quite a divergence in practice on this particular issue. Another benefit

of having a record review is that it brings due gravity and lends due gravity to the

proceeding, preventing from the referee proceeding via uses of practice run for having the

de novo hearing before the circuit court used as essentially a second bite of the apple by a

person dissatisfied with the result at the referee proceeding. A record keeps the parties

and counsel honest. It gives the court on review an opportunity to see whether the same

testimony is being used and it gives the prevailing party the opportunity to challenge

inconsistent testimony that’s brought up at the de novo hearing. It allows the prevailing

party to stand on the record if they so choose and that has the opportunity then to shorten

33

the de novo hearing and the possibility isn’t present (?). It provides for what currently

doesn’t exist or the out record review of the referee’s proceeding immediately before

review of the referee’s performance by the circuit court. It allows for realistic imposition

of sanctions if it is apparent that an objection to a referee’s decision is frivolous or

interposed for purposes of delay as provided for in the current rule, MCR 3.215(F)(3). A

record review also pays due respect to the Legislature’s intention that a transcript be

prepared and be made available to the court under certain circumstances as enacted in

Section 7 of the Friend of the Court Act. We believe that due process is promoted by a

review of the referee’s record since the court, the parties and counsel will be aware of

what evidence was presented, what decisions were made and what the bases for those

decisions are. And last but not least perhaps, it allows referees presiding in domestic

relations cases the dignity of knowing that the records are not simply tossed away at the

whim of a disgruntled party who might not even have appeared at the referee hearing.

We’ve listed some problems that we believe are present with the proposal as written.

They have to do with things such as a determination of payment for the costs of the

transcript. Making sure that the court be limited, as the current language of the rule puts

it, to only allowing the testimony of parties. The problem with that is that we believe that

current rules and rules of evidence allow the court, by discretion, to determine how much

and the extent of testimony the presentation of witnesses at the hearings and we don’t

think that a rule saying that at least the testimony of the parties is necessary and then the

court may go ahead and allow other testimony. There really is no point of that at this time.

We think you’ve got those rules as they are now and I think my time is up.

JUSTICE WEAVER: Any questions, Justices? Thank you for coming.

Item 7 - Minor Personal Protection Orders

JUSTICE WEAVER: We’ll now turn to what the Court is seeking public

comment on court rules recently adopted regarding the procedures applicable to minor

personal protection orders. Anybody comment on that. Minor PPOs.

Item 8 - LAWPAC

JUSTICE WEAVER: We have also added to the agenda a comment on the

proposed LAWPAC issue and on the LAWPAC issue and I have Mr. Peter Ellsworth

listed here. Is he here? There he is.

MR. ELLSWORTH: Madam Chief Justice, would it be all right if Mr.

Butzbaugh preceded me to discuss the (inaudible).

34

JUSTICE WEAVER: Okay, and then I have also Mr. John Pirich. Mr.

Butzbaugh.

MR. BUTZBAUGH: Justice Weaver, Justices. I had appointed a

committee to review the policy of the State Bar. The Committee has printed(?) its work.

The committee consisted of five people. Thee were co-chairs. Paul Hilligons and Judge

Herald Hood, Nancy Diel was on the committee, Tom Keenbaum and Judge Victoria

Roberts. The full committee met three times and several times by conference call. Mr.

Pirich addressed the committee orally. He also had certain materials he asked to be

presented to the committee which were done. The committee then made its

recommendation which was unanimous. That was presented to the Board and the Board

adopted it on April 28. That’s been presented to the Court. I’ll just outline it very briefly.

The policy divides the word into two groups. One is affiliated organizations which are

essentially the component parts of the bar, and everything else is unaffiliations. For an

affiliated organization, that can be on the dues statement at no cost. An unaffiliated

organization must meet another test. The principle purpose of the organization must be to

affect the interest of the legal profession in general, it must be non-profit and it must be

non-commercial. That type of organization then can be on the dues statement upon

payment of a commercially reasonable rate and the Board has set that rate for this year at

$10,000. There is a second option which is to be what you’re referring to as above the

line which means the dues that this organization is seeking would be added into the

statement and then the lawyer would have to deduct it back out. For that privilege there is

an additional fee and this applies to both affiliated and non-affiliated organizations and

that would be an additional fee of $10,000 plus 10% of any amount received by that

organization over $100,000.

JUSTICE CAVANAGH: To provide for the opt out.

MR. BUTZBAUGH: Yes. That is a policy which the Board has adopted.

JUSTICE WEAVER: That’s a reverse checkoff, right.

MR. BUTZBAUGH: Yes, with that additional.

JUSTICE WEAVER: All right, any questions of Mr. Butzbaugh? Thank

you. Bring Mr. Ellsworth up.

MR. ELLSWORTH: Madam Chief Justice and Members of the Court,

Peter Ellsworth representing the State Bar of Michigan. This is the third time that I’ve

addressed the Court with respect to this issue so I will be brief and address essentially one

35

issue. The State Chamber of Commerce in a brief that Mr. Pirich filed earlier this month

said that the analysis of this issue must begin and end with a review of Section 57 of the

Campaign Finance Act. That’s the section which prohibits the use of public resources to

make contributions or expenditures to political campaigns. The State Chamber’s analysis

obviously is that by including LAWPAC on the dues statement there is a violation of

Section 57 and that essentially is the case that they’ve presented to you. I think that the

position that they have taken is an unreasonable way of reading the Campaign Finance

Act which quite frankly would lead to all kinds of other problems in other areas. The

important thing it seems to me for this purpose is that Section 57 prohibits contributions

and expenditures by using public property. That’s the literal language which is utilized in

the rule. That’s important because the terms “contribution” and “expenditure” are defined

terms under the Campaign Finance Act and what the relevant term is that we’re talking

about here is “contribution” because the allegation is that the State Bar is making an in

kind contribution of services to LAWPAC by including LAWPAC on the dues statement.

I think it’s very clear from the rules of the Department of State that this is not an in kind

contribution. And the rule I refer the Court’s attention to is Rule 169.34 which in

pertinent part states: “A committee which is charged less than the fair market value or fair

rental value of an item or service shall report the difference between the amount charged

and the fair market value or fair rental value as an in kind contribution.” If you sell a

service you’re not making a contribution. And the analogy here I think is to the

prohibition in the Campaign Finance Act against making corporate contributions. Both

state and federal law are very clear that corporations cannot make political contributions

but corporations obviously do all the time sell goods and services to political committees.

If the political committee pays fair market value for the goods or service there is no

contribution and that’s essentially what we have with respect to LAWPAC. Mr.

Butzbaugh mentioned that the policy that was recently adopted by the Board of

Commissioners refers to a commercially reasonable value being paid. That terminology

was used in that policy simply because it’s the terminology that was used in the

conciliation agreement which the State Bar entered into with the Department of State. It’s

a fair market test because that’s the test that the Secretary of State is required by the law

to impose. Finally I’d like to just mention, oh one other point which Mr. Pirich has

addressed. Does this mean that a school board, for example, would be permitted under the

law to make contributions to school millages, use school resources to promote a millage

campaign. The answer to that is no it does not. Not because Section 57 prohibits that.

That kind of activity by a school board has been against the law for many, many years in

Michigan and by other public agencies as well and it is interesting that Mr. Pirich attacks

too–his latest submission to this Court–a 1993 opinion of the Attorney General that

construed the School Code being a bar to that kind of activity by a school board for the

reason that it is not expressly authorized by the School Code. Section 57 was passed in

1996 and wasn’t in existence when the Attorney General–

36

JUSTICE YOUNG: But that’s only because the School Code doesn’t

authorize it. It wouldn’t be an offense against your reading of the election law.

MR. ELLSWORTH: That’s correct.

JUSTICE YOUNG: So could the Secretary of State send out with our

driver renewal notices a reverse checkoff for LAWPAC under the same terms.

MR. ELLSWORTH: I don’t think it could, Justice. There are other

provisions which have been construed in a whole series of Attorney General Opinions as

not along that kind of activity by public agencies.

JUSTICE YOUNG: Why.

MR. ELLSWORTH: One provision which has been cited is a provision in

the State Ethics Law which precludes the use of public resources except as expressly

authorized. And there is no authorization for the Secretary of State to engage in that kind

of activity.

JUSTICE YOUNG: What’s the authorization of the State Bar.

MR. ELLSWORTH: Action by the Board of Commissioners many years

ago, in authorizing LAWPAC to appear on the dues statement.

JUSTICE CORRIGAN: If they’re a public body corporate, how are they

distinguishable from the Secretary of State.

MR. ELLSWORTH: Well in the first instance I think Mr. Pirich, in fact

Mr. Pirich did acknowledge this in his brief, a public body corporate is not the same thing

exactly as a government agency, but in the case of the State Bar of Michigan, we’re also

dealing I think with a fundamentally different kind of an organization. The Secretary of

State doesn’t exist to promote interests that would be associated with a political action

committee. The State Bar of Michigan however is in part at least a membership

organization which is there to serve the interests of its members. The Board of

Commissioners has made a decision that the activities of LAWPAC in supporting

candidates who are interested in issues of concern to lawyers and are active with respect

to those issues, that political action committee is acting in the best interests of lawyers.

37

JUSTICE YOUNG: Referring to my other question. Where is the State

Bar by statute or court rule authorized to allow anybody to solicit funds for a political

action committee.

MR. ELLSWORTH: Where there is no express authorization, Justice

Young, but the authority of the State Bar comes from the rule that the Supreme Court

issued governing the activities of the State Bar and that rule is in turn based on the statute

which created the state bar.

JUSTICE YOUNG: Is there express authorization to solicit for LAWPAC

there.

MR. ELLSWORTH: No, there is no express authorization.

JUSTICE YOUNG: What’s your best shot at explicit authorization for the

Bar to solicit for LAWPAC.

MR. ELLSWORTH: I believe it comes from the Supreme Court’s charge

to the Board of Commissioners that the Board of Commissioners is to determine the

policies and standards that the State Bar will follow.

JUSTICE TAYLOR: Well let’s say hypothetically that the State Bar

wanted to do something illegal. That authorization that they have from the Supreme Court

you just referred to wouldn’t give them the ability to do that, would it.

MR. ELLSWORTH: Of course not.

JUSTICE WEAVER: Any further questions?

JUSTICE KELLY: Does the State Bar undertake other activities that are

not explicitly provided for.

MR. ELLSWORTH: Sure. As I think you all know, the court rule that

governs the State Bar, it’s not a very specific rule in terms of what the Board of

Commissioners and the Bar is to do but it’s a very broad rule that gives to the Board of

Commissioners the basic control over the Bar. Now obviously that control is subject to

the supervision of this Court but I would suggest to you that it should not be the business

of this Court to immerse itself in the minutia of Bar governments. Thank you very much.

38

JUSTICE WEAVER: Any other questions? Thank you Mr. Ellsworth. Mr.

John Pirich.

MR. PIRICH: Chief Justice Weaver, Justices of the Supreme Court, John

Pirich appearing on behalf of the State Chamber. I am also honored and pleased to be in

Marquette and argue in this famous courthouse with the Court today. It’s a distinct honor,

a professional honor and personal honor. I’d just like to respond if I could to a few of the

points that Mr. Ellsworth and Mr. Butzbaugh made. I think my last letter, my May 8, 2000

letter which I think includes everything that I put everything that put in my four other

letters to the Court going back to February 1999 is self-explanatory. I hope this Court

doesn’t do this as this Court being asked to get into the minutia of what the State Bar

does. This is much more important than minutia. Why candidly–look at the history of

what happened here. The Board of Commissioners for 20 years authorized the State Bar

to be in operation of a separate segregated fund which was absolutely illegal. It had no

authority to do so. And the State Bar entered into a conciliation agreement with Secretary

of State saying they weren’t going to do that anymore. Now what are we doing with the

way this proposal that the dues committee has come up with. The reality is we’re trying to

do the same thing again. We’re saying first of all if you’re affiliated with the State Bar

you can be on at no cost whatsoever as long as you add that cost in on your own. And I

think this Court knows full well from the record that we produced before that unless it’s a

reverse checkoff the State Bar in its efforts to assist LAWPAC would be absolutely

unsuccessful. The reality is 98% of LAWPAC’s contributions come through the reverse

checkoff, and I would suggest to you, and I don’t have empirical evidence of this, but a

substantial portion of that is due to inattentiveness or lack of understanding of how this

system works. The reality is, unless you go down, and I showed this to the Court

previously, and take that amount out of the predetermined bar dues that you are asked to

pay, you’re charged. So to say that this is the minutia of the Court, I mean we’re talking

about First Amendment rights of lawyers in this state who don’t want to or don’t have to

participate, why should they have to go through these steps.

JUSTICE TAYLOR: Mr. Pirich, is your argument that this is an illegal act

based on the notion that it is effectively a contribution by the State Bar to LAWPAC.

MR. PIRICH: Absolutely, Justice Taylor.

JUSTICE TAYLOR: What if hypothetically the LAWPAC people said to

the State Bar we will entirely take over all costs of mailing and send out your dues notice

courtesy of us so that indeed the State Bar, in my hypothetical, has no costs. Would it still

be illegal.

39

MR. PIRICH: Absolutely.

JUSTICE TAYLOR: And why would it be.

MR. PIRICH: Section 57–

JUSTICE YOUNG: There’s no contribution there.

MR. PIRICH: Well, but it’s just any cost, Justice Young.

JUSTICE TAYLOR: Well let’s assume a hypothetical where there is

none.

MR. PIRICH: Well if there is no cost then I would say it wouldn’t be but

the reality is–

JUSTICE TAYLOR: Well, I just know you don’t have too much time and

you want to get that in but let me just ask you, if you had a circumstance where the

LAWPAC did in fact say that, a cost-free transaction for the Bar, would your objection

then be abated.

MR. PIRICH: It would be abated but the reality is, under Section 4 of the

Campaign Finance Act that defines contribution, if there is a transfer of anything of

ascertainable value, there is an ascertainable value being on the State Bar dues form that

comes out. There is absolutely a value.

JUSTICE TAYLOR: So in my hypothetical even you would still say there

is something of value.

MR. PIRICH: Absolutely in the sense that you have the entre then to

33,000 people.

JUSTICE TAYLOR: It’s the access which is the value.

MR. PIRICH: Access, absolutely.

JUSTICE YOUNG: Well suppose they were selling a list of members.

MR. PIRICH: Selling the list of members falls outside that gambit because

it’s for only a service of getting the listing itself. All activities with regard to mailing,

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with returning checks from P.C.’s that would come in that are not acceptable, all of that

would be handled outside of the ambit of the Bar.

JUSTICE YOUNG: Let me simply suggest to you you’re quibbling then

now not about whether it’s possible that a program could pass muster without causing a

contribution or an expenditure, you’re just challenging that this one doesn’t do it.

MR. PIRICH: This one doesn’t do it, number one. Number two, it’s been

two years that we have been going through this process, or three. July 1st the bar dues go

out again and we have the same cycle repeating itself.

JUSTICE YOUNG: Let me just make sure I’m clear on your position. If it

were provable that the entire value of this transaction was being underwritten, including

the value of having this reverse checkoff, that LAWPAC was paying the bar for all of that

so there was no charge, no expenditure, no compensation running from the bar anywhere

else, then you have no argument.

MR. PIRICH: Well you have the argument though that if there is any

ascertainable value it’s still value.

JUSTICE YOUNG: Well let’s assume that you can ascertain the value of

the reverse checkoff and that’s being compensated.

MR. PIRICH: And that’s the other problem. The reality is, if I could

Justice, the reality is it’s not that easy a line under the Campaign Finance Act to make that

kind of distinction. The real answer is, the easy answer is, if the people in the Bar

Association want the political action committee, go out and do it on their own.

JUSTICE YOUNG: That’s a different issue. You’re asserting illegality.

I’m trying to determine what the illegality is.

JUSTICE TAYLOR: Aren’t you saying, Mr. Pirich, in essence that

establishing the value is tough because there are intangibles for what it’s worth to be on

this but that is a feasibility kind of problem, not an illegality problem.

MR. PIRICH: Well to the extent that it could ever be ascertained I think it

still is an illegality problem but the reality is I know of no way that you can ascertain it

because this is a public body. This is not a non-public body and once you are a public

body under Section 57, and I think it’s important to review what it says briefly, that you

shall not use or authorize use of funds, personnel, office space, property, stationary,

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postage, vehicles, equipment or other public resources to make a contribution. I think our

position has been straightforward and consistent on this.

JUSTICE TAYLOR: Can I ask you this. Are you also relying on an

argument that it’s just plain unseemly for a state agency to be soliciting for a PAC.

MR. PIRICH: Absolutely. The hypotheticals that we tried to use, and Mr.

Ellsworth said well it won’t work with a school board, but the reality is, if this Court

authorizes this practice to continue, now all of sudden a school board can come back and

say if it’s good enough for the State Bar that the Supreme Court has sanctioned it and

Section 57 doesn’t apply to them, then it doesn’t apply to us. It’s the same argument that

we’ve used on our list of horribles that once you open the door how do you stop it.

Secretary of State can send out drivers license forms and say may be running for

political office, here’s a PAC and if you want to contribute you can do it.

JUSTICE TAYLOR: Well wouldn’t you be making the argument that

even if it isn’t illegal, let’s suppose the cost could be isolated, that it is still inappropriate

because it’s a state agency.

MR. PIRICH: Absolutely. I used the argument once before this Court that

the Natural Resources Commission could be soliciting for the National Rifle Association.

It’s absolutely inappropriate. It’s absolutely unseemly to have that kind of activity with

regard to a public body and Mr. Ellsworth has admitted previously in his writings and his

argument that the State Bar is a public body. Understanding that, I think our position is

straightforward and clear on that and I think all of the materials that we’ve submitted to

the Court have justified the request that we’ve asked for, either an administrative ruling or

determination from this Court that continuation of the practice isn’t acceptable. In terms

of the administrative rule that Mr. Ellsworth made reference to, the administrative rule

can’t trump the statute. I mean that’s basically where we are. Section 57 and Section 4

either mean something, and they mean something for the State Bar and the Secretary of

State and the Natural Resources Commission, or they don’t mean anything. Or they mean

something for school boards or they don’t mean something for school boards. We think

it’s straightforward and clear.

JUSTICE WEAVER: Thank you Mr. Pirich. Any other questions?

MR. PIRICH: Thank you very much.

JUSTICE WEAVER: That concludes our hearing this morning and this

afternoon. Again for all the Court, we express our appreciation and particular pleasure it

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has been to be here in this beautiful courtroom in this very fine part of Michigan. And it is

my understanding that the local bar has arranged to have lawyers, members of the Bar and

the Bench for a reception for the bar members to meet with the Justices. With that we will

be adjourned. Thank you.